Privilege Revoked

The government says it can pry into the attorney-client relationship all it wants.

Lynne Stewart, a New York human-rights lawyer with a taste for radical politics, is accustomed to representing unpopular clients.

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She never dreamed it would become illegal.

Stewart was in Seattle on Monday as part of a national campaign to drum up supportnot for a client, but for her own case. Stewart was a member of the court-appointed defense team for Sheikh Omar Abdel Rahman, who is serving a life sentence in connection with the first World Trade Center bombing in 1993. After his conviction, Stewart continued as one of the lawyers representing Abdel Rahman. The Seattle visit came just over a year after her arrest April 8, 2002, when she was taken from her home without warning. Federal agents combed through her office, seizing files on all of her cases, and Attorney General John Ashcroft proudly announced that Stewart had been charged in a four-count criminal indictment with aiding and abetting a terrorist organizationsolely for her work in representing Abdel Rahman.

Stewart's case, now winding its way through pretrial motions toward a January trial, stands as a critical test for the Bush administration's newly reserved right to violate lawyer-client confidentiality in order to wage the war on terror. It also has a significant First Amendment component. Stewart's indictment charges her with discussing Abdel Rahman's case with a Reuters reportereven though no gag order barred her from doing so; with talking while an interpreter was speaking with her client during a consultation in his prison cell, thereby preventing the Justice Department from taping their conversation in Arabic; and with allowing the interpreter and client to speak in Arabic about nonlegal matters. If convicted, she faces 40 years in prison.

THE CHARGES STRIKE at the heart of the U.S. Constitution's Sixth Amendment guarantee that all people accused of a crime are entitled to effective representation by an attorney. Courts have long held that attorney-client confidentiality is essential to that right; without the ability to speak freely about what they have, and have not, done, defendants are severely impaired from learning their legal status and options, and attorneys cannot mount the best defense. But Stewart's case has broader implications. In the future, attorneys will be less willing to represent clients like Abdel Rahman.

And since Stewart's indictment, Ashcroft has gone even further, declaring noncitizens, and later, U.S. citizens as well, "enemy noncombatants" so as to hold them indefinitely without charges, denying access to any attorney at all.

Whether or not the "enemy noncombatant" ruse is eventually ruled unconstitutional, Stewart's case risks setting a precedent that could literally destroy an accused terrorist's right to counselwhile allowing the government to choose who qualifies as a "terrorist." Even before 9/11, several federal provisions allowed investigators to violate attorney-client privilege: when the state had reason to believe the attorney and client were complicit in criminal behavior; as a court-approved part of international espionage; or if a court barred incarcerated clients from communicating with the outside world, including their attorneys, about nonlegal matters.

BUT ASHCROFT'S provisions, announced and implemented without public notice or comment less than three weeks after 9/11, are far broaderallowing the monitoring of attorney-client conversations without a court order or supervision or even the suspicion of criminal behavior by the attorney, if the client is accused of terrorism. The regulation allows surveillance "to the extent determined to be reasonably necessary for the purpose of deterring future acts of violence or terrorism." The Department of Justice alone does the determining.

Among other things, such monitoring allows the government complete access to everything the defense knows and every strategy the defense plans. It raises the possibility that attorneys could be called to testify against their clients or that attorneys could be charged for withholding information on a crime from investigators. Attorneys' personal jeopardy creates an impossible conflict of interest with their professional duty to fully represent their clients. The government, at its leisure, can target lawyersones like Stewart, with a long history of representing unpopular clients, or like the lead attorney in Stewart's defense, Michael Tigar, famed for saving Oklahoma City bomber Terry Nichols from execution. And Ashcroft's regulation, if upheld, sets a precedent that state and local jurisdictions can rush to emulate.

Lynne Stewart is a guinea piga chance for the Bush administration to see how far it can push its evisceration of the Bill of Rights. The attack on attorney representation is only one of a staggering number of its post-9/11 assaults on the Constitution, but it's one of the most important.

Invariably, the least sympathetic among usthe accused terrorists and the radical lawyersare the first to lose basic rights.